Missouri Back In the Execution Business

Federal appeals judges in St. Louis put Missouri back in the execution business Monday, finding there are sufficient safeguards to protect the condemned against pain from lethal injection.

State officials pledged to resume the process immediately but could not say who would go next, or when.

Lawyers for Michael A. Taylor, a Kansas City killer whose appeal is at the center of the case, began preparing to seek a reconsideration by the full 8th Circuit U.S. Court of Appeals. If that fails, they said, they will seek review by the U.S. Supreme Court. Such an appeal could take until fall.

Lethal injection, the primary method used by 37 of the 38 states with the death penalty, is under heavy assault by critics who claim the combination of drugs used could simultaneously cause excruciating pain and mask it. Advertisement

Last year, Taylor's lawyers took the concern to U.S. District Judge Fernando J. Gaitan Jr., in Kansas City, who halted all Missouri executions June 26 after testimony by "John Doe I," the state's longtime execution doctor.

The physician, later identified in a Post-Dispatch investigation as Dr. Alan Doerhoff, testified that he is dyslexic, did not always follow the same procedures, did not record the actual amount of anesthetic delivered and sometimes used only half the suggested five-gram dose.

He also told the court he monitored the "anesthetic depth" of the dying inmate by watching facial expressions through a window.

Gaitan ruled there was an unnecessary risk of pain and suffering, in part because the protocol was "subject to change at a moment's notice" that Doerhoff appeared to have "total discretion," with "no checks and balances or oversight, either before, during or after the lethal injection occurs."

The judge demanded that the state create a written protocol, use a board-certified anesthesiologist, administer at least five grams of anesthetic and create a better way to monitor consciousness.

After Gaitan twice rejected the Department of Corrections' proposed new measures, the state appealed. RELATED LINKCourt ruling on Missouri's method of execution

In Monday's 21-page ruling, Judge David R. Hansen, writing for Judge William Jay Riley and Senior Judge C. Arlen Beam, said the Constitution does not require a "medically optimal" setting or a doctor for an execution.

Hansen ackowledged concerns, but wrote, "In each of the past six executions, however, death occurred in five minutes or less from the time the first chemical was administered, and there was not a scintilla of evidence that any prisoner ever suffered any pain other than what was necessary to acquire access to the prisoner's circulatory system through the insertion of the needed intravenous lines."

"The Constitution protects only against the wanton and unnecessary infliction of pain," he wrote, adding that suggested the procedure "renders any risk of pain far too remote to be constitutionally significant."

John Fougere, a spokesman for the Attorney General's office, would not comment on whether Taylor would now be first in line among the 46 inmates on death row. Taylor was hours from death on Jan. 31, 2006, when federal appeals judges delayed his execution.

"There is not an injunction in place, and we will be moving forward with this process so that the sentences imposed by juries are carried out," Fougere wrote in an e-mailed response to a reporter's questions.

At the Missouri Department of Corrections, spokesman Brian Hauswirth, said Monday "We are ready to go."

By state law, the attorney general seeks a death warrant against a particular inmate and the Missouri Supreme Court sets the execution date.

Taylor was sentenced to death for murdering a teenage girl in Kansas City in 1989. He is not the Michael Taylor on death row for the murder of a teenager in St. Louis County.

Ginger Anders, one of the defense lawyers, said Monday in a prepared statement that the new ruling focuses on the written protocol and ignores "the overwhelming evidence that the state's actual performance of executions repeatedly has deviated from its public representations about the procedures."

She continued, "This is especially troubling because a written protocol can't ensure that executions are performed humanely. It's the training, fitness, and actions of the executioners that determine whether executions are humane or not. And that is precisely the problem here -- the state has proven that it cannot be trusted to employ competent, reliable executioners."

Anders said at least 10 states have put executions on hold pending challenges to lethal injection procedures.

Many doctors avoid participation in executions, saying it violates their oath to do no harm. Seventeen of the 37 lethal injection states require that a doctor participate. Missouri does not, and the appeals court found Monday that use of a nurse or EMT is sufficient. Kentucky, like Illinois, forbids a doctor's involvement.

A July 30 Post-Dispatch story showed that Doerhoff, Missouri's doctor had been reprimanded by the state Board of Healing Arts and denied staff privileges by two hospitals.

Regardless of the outcome of the Taylor case, Doerhoff is out. The state sent a letter to the court in April saying it would no longer use him in executions.

But Hauswirth, of the corrections department, said Monday, "We still think that John Doe I did a fine job."

Legislators passed a law this year that would make it illegal for anyone to knowing disclose the identiy of an executioner.